Marin Grand Prix Motors Corporation

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1156 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marin Grand Prix Motors Corporation and Interna-
tional Association of Machinists and Aerospace
Workers, District Lodge No. 190 and Local
Lodge No. 1305, AFL-CIO. Case 20-CA-
15954
May 28, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
ME-MBEIRS FANNING AND HUNTER
On March 25, 1982, Administrative Law Judge
Jay R. Pollack issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to
adopt his recommended Order, as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied and set forth in full below, and hereby orders
that the Respondent, Marin Grand Prix Motors
Corporation, San Rafael, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against employees for supporting or engaging in
activities on behalf of International Association of
Machinists and Aerospace Workers, District Lodge
No. 190 and Local Lodge No. 1305, AFL-CIO, or
any other labor organization.
(b) Promising employees increased benefits if
they voted against the Union; promising benefits to
i We shall modify the Administrative Law Judge's recommended
Order so as to require Respondent to expunge from its files any reference
to the discriminatory discharge of Horatio Wilmott on December 6, 1980,
and to notify him, in writing, that this has been done and that evidence of
this unlawful discharge will not be used against him. See Sterling Sugars.
Inc., 261 NLRB 472 (1982).
We also shall modify the recommended Order so as to require Re-
spondent to rescind the unilateral changes in health and tool insurance
coverage and in its "comeback" policy, to restore the insurance coverage
that was in effect as of September 1, 1980, and to make the employees
whole for any losses due to its unilateral changes in insurance coverage.
The Union requests that we order Respondent to reimburse it for attor-
ney's fees under 7iidee Products, Inc., 194 NLRB 1234 (1972). However,
we deny the Union's request since we find that such an extraordinary
remedy is not warranted in the circumstances of this case.
261 NLRB No. 170
employees who voted against the Union; threaten-
ing to discharge employees who voted for the
Union; threatening employees with reduced bene-
fits because of their union activities; creating the
impression that its employees' union activities were
under surveillance; encouraging employees to
demand that the Board election be annulled; and
telling employees that it would never negotiate a
contract with the Union.
(c) Unilaterally changing health and tool insur-
ance coverage, or instituting a "comeback" policy
without first giving the Union an opportunity to
bargain over the matter.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer Horatio Wilmott immediate and full re-
instatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority and
other rights and privileges previously enjoyed, and
make him whole in the manner described in the
section of the Administrative Law Judge's Deci-
sion entitled "The Remedy" for any losses suffered
by reason of his discriminatory discharge on De-
cember 6, 1980.
(b) Expunge from its files any reference to the
discriminatory discharge of Horatio Wilmott on
December 6, 1980, and notify him, in writing, that
this has been done and that evidence of this dis-
charge will not be used as a basis for future person-
nel actions against him.
(c) Rescind the unilateral changes it made in its
health and tool insurance coverage and in its come-
back policy, and restore the insurance coverage
that was in effect prior to September 1, 1980.
(d) Make whole its employees for any monetary
losses they may have suffered as a result of the uni-
lateral changes in health and tool insurance cover-
age, with interest, in the same manner as that speci-
fied in the section of the Administrative Law
Judge's Decision entitled "The Remedy."
(e) Post at its San Rafael, California, facility
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
2In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I abor Relations Board."
1156
MARIN GRAND PRIX MOTORS CORP.
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Copies of the above-mentioned notice shall
also be mailed to all automobile mechanics and ap-
prentices employed by Respondent during the
period from July 1980 to February 1981, at their
homes.
(g) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(h) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise dis-
criminate against employees for supporting or
engaging in activities on behalf of Internation-
al Association of Machinists and Aerospace
Workers, District Lodge No. 190 and Local
Lodge No. 1305, AFL-CIO, or any other
labor organization.
WE WILL NOT promise employees increased
benefits if they voted against the Union; prom-
ise benefits to employees who voted against
the Union; threaten to discharge employees
who voted for the Union; threaten employees
with reduced benefits because of their union
activities; create the impression that employ-
ees' union activities were under surveillance;
encourage employees to demand that the
Board election be annulled; and tell employees
that we would never negotiate a contract with
the Union.
WE WII. NOT unilaterally change health
and tool insurance coverage, or institute a
"comeback" policy, without first giving the
Union an opportunity to bargain over such
matters.
WE WIl. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
Wli w i.l. offer Horatio Wilmott full and im-
mediate reinstatement to his former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges previously enjoyed, and wE Wll l make
hm whole for any losses he may have suffered
because of the discrimination against him, plus
interest.
WE wit.l. expunge from our files any refer-
ence to the discriminatory discharge of Hora-
tio Wilmott on December 6, 1980, and WE
wi.i notify him in writing that this has been
done and that evidence of this discharge will
not be used as a basis for future personnel ac-
tions against him.
WE WILL rescind the unilateral changes we
made in our health and tool insurance cover-
age and in our comeback policy, and WE Wlt.l
restore the insurance coverage that was in
effect prior to September 1, 1980.
WE WILL make whole our employees for
any losses they may have suffered as a result
of our unilateral changes in health and tool in-
surance coverage, plus interest.
MARIN GRAND PRIX MOTORS COR-
PORATION
DECISION
S'TArEMENT OF IHE CASE
JAY R. POLI.IACK, Administrative Law Judge: I heard
this case in San Francisco, California, on February 16,
1982. On March 31, 1981, the Acting Regional Director
for Region 20 of the National Labor Relations Board
issued a complaint and notice of hearing, based on an
unfair labor practice charge filed by International Asso-
ciation of Machinists and Aerospace Workers, District
Lodge No. 190 and Local Lodge No. 1305, AFL-CIO,
herein called the Union, on January 15, 1981. The com-
plaint alleges in substance that Marin Grand Prix Motors
Corporation, herein called Respondent, engaged in cer-
tain violations of Section 8(a)(1) and (3) of the National
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, as amended, 29 U.S.C. § 151, et
seq.
The parties were given the opportunity during the
hearing to introduce relevant evidence, to examine and
cross-examine witnesses, to argue orally, and to file
briefs. Respondent was not represented by counsel and,
with the exception of a brief cross-examination of one of
the witnesses presented by the General Counsel, Re-
spondent did not participate in the hearing.
Upon the entire record made in this proceeding, in-
cluding my observation of the demeanor of the wit-
nesses, I make the following:
FINDINGS 01 FAC'I ANI) CONCIUSIONS
I. JURISDICT ION
At the time material herein, Respondent, a California
corporation, maintained its principal place of business in
San Rafael, California, where it was engaged in the retail
sale and service of automobiles. During the 12 months
preceding issuance of the complaint, Respondent re-
ceived gross revenues in excess of $500,000. During the
same time period, Respondent purchased and received
goods valued in excess of $50,000 from locations directly
outside California. Accordingly, I find that, at the time
material herein, Respondent was an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. ITHE I.ABOR ORGANIZATION INVOLVED
The Union exists for the purpose, inter alia, of repre-
senting its employee-members in dealing with employers
for the purpose of collective bargaining. The Union was
certified as the exclusive collective-bargaining repre-
sentative of Respondent's auto mechanics and appren-
tices in Case 20-RD-1602 on September 26, 1980. Ac-
cordingly, I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
111. THI. AI.LEEGFI) UNFAIR L.ABOR PRAC TICEiS
A. Background
As discussed above, Respondent operated an auto-
mobile dealership in San Rafael, California.' Respondent
purchased the dealership from Brown Motors in approxi-
mately September 1979. At the time of Respondent's
takeover of the auto dealership, the auto mechanics were
represented by the Union. On April 7, 1980, a petition
was filed in Case 20-RD-1602 by Leonard Williams, an
employee, seeking to decertify the Union as the exclusive
collective-bargaining representative of Respondent's auto
mechanics. On July 24, 1980, an election was held under
the auspices of the Regional Director in the appropriate
collective-bargaining unit.2 The tally of ballots revealed
In February 1981, Respondent sold the dealership
2 The approprate unit is:
All full-time and regular part-time journeymen auto mechanics and
apprentices employed by Respondent at its San Rafael, California lo-
cation; excluding all other employees, guards and supervisors as de-
fined in the Act
that four ballots were cast for representation by the
Union, one ballot was cast against representation, and
three ballots were challenged. Thus, the challenged bal-
lots were sufficient in number to affect the results of the
election. The challenge to one ballot was upheld by the
Acting Regional Director, pursuant to agreement of all
parties, and, therefore, the Acting Regional Director
made no determination with respect to the other chal-
lenges. On September 26, 1980, the Board issued its De-
cision and Certification of Representative, certifying the
Union as the exclusive representative of all the employ-
ees in the appropriate bargaining unit.
Within this factual background the General Counsel
alleges that Respondent committed various violations of
Section 8(a)(1) of the Act in order to persuade its em-
ployees to vote for decertification of the Union. Further
the General Counsel alleges that, after the election, Re-
spondent sought to retaliate against those employees who
voted for the Union and to reward those employees who
voted against representation by the Union. Further, the
General Counsel alleges that Respondent discharged Ho-
ratio Wilmott, a mechanic, in violation of Section 8(a)(3),
because of his support for the Union in the representa-
tion election. Finally, the complaint alleges that Re-
spondent made certain changes in terms and conditions
of employment of the unit employees, without prior
notice to or bargaining with the Union. Respondent filed
a timely answer denying the commission of any unfair
labor practices but, as discussed above, Respondent did
not present any evidence at the hearing.
B. The 8(a)(1) Allegations
As discussed above, the petition for the representation
election was filed on April 7, 1980. Prior to the election
of July 24, James Carter, Respondent's secretary-treasur-
er,3 sought to persuade employees to vote against repre-
sentation by the Union. Robert Craw, Jr., a mechanic,
testified that he returned to Respondent's employ in
April 1980, after a leave of absence of several months.
According to Craw, he and Carter had numerous discus-
sions in which they agreed that Respondent's dealership
would be better off without the Union. Prior to Craw's
return to Respondent's employ in April 1980, Carter said
Respondent would "take care" of Craw because Craw
was one of the few people whom Respondent could
count on to vote against the Union. Craw attempted to
convince employees to vote against representation by the
Union. He frequently reported back to Respondent's
management the sentiments of the mechanics regarding
the election. Craw reported to Carter, Reed, Voulgaris,
and Helzer that employees Dave Rogers, Bruce Hicks,
and Horatio Wilmott intended to vote for the Union in
the election and that employee Guy Hampe, in addition
to Craw, intended to vote against the Union. With re-
spect to employee Chris Clemens, initially Craw report-
ed that Clemens would vote against the Union. Howev-
er, 2 weeks prior to the election, Clemens changed his
3 1 find that Carter, President B. G Reed, Officer and Stockholder
Ted Voulgaris, and Service Director Robert Helzer were supervisors of
Respondent within the meaning of Sec. 2(1 I) of the Act.
1158
MARIN GRAND PRIX MOTORS CORP.
mind and Craw, accordingly, updated his report to Re-
spondent's management.
Prior to the election, Respondent's campaign against
the Union centered around its argument that its proposed
profit-sharing plan would be more beneficial to employ-
ees than the Union's pension plan. Craw spoke to em-
ployees and sought to convince them of the benefits of
Respondent's proposed plan. Shortly before the election,
Heizer, Carter, and Voulgaris held meetings with the
employees in which they asked for support in the forth-
coming election. The employees were told that if they
voted for the Company they would receive a better
benefit package than that received under a union con-
tract. Profit sharing was mentioned; however, the em-
ployees were told that the details could not be given out
before the election.
Mechanic Chris Clemens testified that, shortly before
the election, Helzer told him that it did not matter which
way the election went because Respondent had "lined up
scab mechanics" in case the employees went on strike.
Mechanic Dave Rogers also testified that he had a con-
versation with Helzer prior to the election concerning a
possible strike. Helzer told Rogers that, if the employees
voted for the Union, there would be a strike. Rogers said
that, before there could be a strike, the employees would
have to vote for a strike. Heizer answered that knowing
management as he did, there definitely would be a strike.
Helzer said that Respondent had six mechanics waiting
in case of a strike. Rogers said that there were not six
unemployed Alpha Romeo mechanics in California.
Helzer answered that Respondent had advertised nation-
ally and had lined up mechanics for a strike.
On the day of the election, after the ballots were
counted, Carter became very upset at the results of the
voting. Carter screamed at the employees that they were
no good. He also screamed that the employees wanted
the Union and were "going to be stuck with it." That
same day, Helzer told Clemens that Clemens' scheduled
trip to a school run by Alpha Romeo in Los Angeles
was canceled because of "the way the vote had gone."
Upon learning that Clemens' trip to the Alpha Romeo
school had been canceled, Rogers went to talk to Helzer.
Helzer told Rogers that Carter had told him (Helzer)
that Respondent no longer wished to pay for Clemens'
schooling. Carter approached Rogers and Helzer, and
Rogers asked Carter why he was punishing Clemens.
Carter said that he (Carter) knew who the loyal employ-
ees were and that he was not going to train disloyal em-
ployees. Carter then told Rogers of problems that he had
with unions on the east coast. When Rogers appeared
sympathetic, Carter asked Rogers to explain to the other
employees how terrible the Union was and to attempt to
have "this election annulled and to ask for another elec-
tion or try and change the results." Later that evening,
Carter called Clemens at home and told Clemens that
Respondent would send Clemens to the school "but
there would probably be another election."
The day after the election, Carter told employee Guy
Hampe that Respondent appreciated Hampe's vote
against the Union and that Hampe "would be treated
well." Shortly after the election, Carter told Hampe and
Craw that he was sorry that the Union had been voted
in and that Respondent's plans for profit sharing had
been ruined. Carter said that he appreciated Hampe's and
Craw's loyalty. Carter later told Craw that anybody who
had anything to do with the Union would be "out of
luck." Carter said he intended to "force out" Wilmott,
Rogers, Clemens, and Hicks. Carter also told Craw that
he would never sign a contract with the Union, but
would "burn down the place first."
Prior to the election, Respondent paid for health insur-
ance coverage for its employees and their dependents.
However, in September 1980, Respondent notified its
employees that it would no longer pay for coverage for
dependents. Employees were asked whether they wished
to pay for coverage of dependents or cancel that cover-
age. Most of the employees refused to authorize any
change. Thereafter, Respondent canceled coverage for
dependents. During the same time period, Respondent
decreased the amount of its insurance coverage for its
employees' tools. The Union received no notice of these
changes in insurance coverage until after the changes
had been put into effect. Another change by Respondent,
after the election, occurred in the institution of a come-
back policy.
Prior to the election, Respondent had no policy re-
garding comebacks. Comebacks are automobiles upon
which repairs have been made which come back to the
shop for the work to be redone. After the election,
Helzer announced that a record would be kept of the
number of comebacks for each mechanic and that three
comebacks by any mechanic would result in that me-
chanic's discharge. Prior to the election there had been
no complaints about comebacks. It appears that the
comeback policy was discriminatorily applied. Craw and
Hampe, who voted against the Union, received no com-
plaints about comebacks. Hicks, Rogers, and Wilmott.
who voted for the Union, received complaints. The com-
plaints against Rogers turned out to he invalid. Clemens,
the fourth union voter, was off from work due to an
injury at the time the policy was instituted.
C. The Discharge of Horatio Wi/lmott
Wilmott has been employed as a mechanic for 27
years. He was working for Brown Motors when Re-
spondent took over the operation in early 1980. Wilmott
has been a member of the Union for many years and Re-
spondent knew, through Craw, that Wilmott voted for
the Union in the representation election.4 Prior to the
election, Respondent had made no complaints about Wil-
mott's work. However, after the election, Respondent's
attitude toward Wilmott changed.
Shortly after the election, Helzer, at a meeting of me-
chanics, complained about too many comebacks. Heizer
later met individually with each mechanic to discuss
comebacks. Helzer told Wilmott that Wilmott had too
many comebacks. Wiilmott answered that there had
never been any complaints about his work and that Re-
spondent had always been happy with his work. Heizer
said that recently Wilmott had too many comebacks. At
4 As ',ated earlier, Carter told Craw that Wilmott and the other
prounion emphoyes would be firced out
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing, Wilmott testified that he had comeback
problems with only one automobile.
In September 1980, Wilmott injured his back while
working on an automobile at Respondent's shop and was
off from work until December. Wilmott returned to
work on December 5 and pursuant to usual practice was
given light duty. Helzer told Wilmott that Respondent
had too many mechanics and would have to "get rid of
some of them." Helzer advised Wilmott to look for work
elsewhere. Wilmott answered that because of his age he
would have difficulty finding another job. The next day,
Helzer assigned Wilmott to remove an engine and trans-
mission, very heavy work. According to several wit-
nesses, this was contrary to past practice; i.e., employees
returning from injury or disability would usually be
given light work. On that afternoon, Helzer told Wilmott
that Respondent did not need the mechanic's services
anymore. Helzer said that Respondent had too many me-
chanics and not enough work.5 According to Wilmott,
Respondent's mechanics worked overtime on that date.
I find that the General Counsel has established a prima
facie case that Wilmott was discharged because of his
support for the Union. Respondent learned from employ-
ee Craw that Wilmott voted for the Union in the repre-
sentation election. Upon receiving the tally of ballots,
Carter became angry and said he would force out the
employees who supported the Union. That very day,
Carter withdrew from employee Clemens the scheduled
trip to school for training. He also asked employee
Rogers to attempt to get another election. Insurance
benefits were reduced and a comeback policy an-
nounced. Within this background of unfair labor prac-
tices, Helzer first suggested that Wilmott look for work
elsewhere. When that ploy did not work, Heizer as-
signed Wilmott heavy work, despite the employee's back
injury and the usual practice of assigning injured em-
ployees light work. Finally, when Wilmott did not quit,
Helzer fired him citing lack of work, although the other
mechanics were working overtime.
Under the Board's decision in Wright Line, a Divivion
of Wright Line, Inc., 251 NLRB 1083 (1980),7 the burden
shifts to Respondent to demonstrate that the same action
would have taken place even in the absence of the pro-
tected conduct. As stated earlier, Respondent put on no
defense. Accordingly, I find that Respondent discharge
Wilmott because of his support for the Union and there-
by violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS Oi LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in a
5 Wilmott had not yet completed the transmission job.
6 At the time of Wilmott's discharge, Clemens was off from work with
an injury and Rogers had left for another job.
7 Enfd as modified 662 F.2d 899 (Ist Cir. 1981)
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by unlawfully discharging its employee Horatio Wil-
mott because of his support for the Union.
4. Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally changing its health insurance and tool
insurance coverages and instituting a comeback policy
without prior notification to or bargaining with the
Union.
5. Respondent violated Section 8(a)(1) of the Act by:
promising employees increased benefits if they voted
against the Union; creating the impression that its em-
ployees' union activities were under surveillance; encour-
aging employees to demand that the Board election be
annulled; threatening to discharge employees who voted
for the Union; promising benefits to employees who had
voted against the Union; threatening employees with re-
duced benefits because of their union activities; and tell-
ing employees that it would never negotiate a contract
with the Union.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent, Marin Grand Prix
Motors Corporation, engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act.
Respondent shall be required to offer Horatio Wilmott
reinstatement to his former job8 or, if that job no longer
exists, to an equivalent position of employment, without
prejudice to his seniority or other rights and privileges,
and to make him whole for any loss he may have suf-
fered as a result of the discrimination against him in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest computed in the manner set
forth in Florida Steel Corporation, 231 NLRB 651 (1977).
See, generally, Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
As Respondent is no longer operating the dealership,
and to insure that all employees affected by Respondent's
action be apprised of the unlawful nature of these acts
and assured that such acts will not be repeated, Respond-
ent will be ordered to mail the notice to employees, re-
quired by this Order, to the homes of all auto mechanics
and apprentices employed by Respondent during the
period of July 1980 to February 1981.
[Recommended Order omitted from publication.]
As discussed above. Respondent is no longer operating the auto-
mobile dealership. I leave to the compliance stage of this proceeding the
determination of the extent to which Respondent is able to comply with
the usual remedial order.
1160